Voluntary assisted dying laws in Australia

Alison Choy Flannigan

Hall & Wilcox, Sydney

alison.choyflannigan@hallandwilcox.com.au

What is voluntary assisted dying?

Voluntary assisted dying (VAD) is when someone chooses to medical assistance to end their life. VAD means administering a VAD substance for the purpose of causing death in accordance with a step-by-step process set out in the legislation.

What is the relevant legislation in Australia?

Voluntary assisted dying is currently available to adults in Australia in the ACT, Queensland, New South Wales, South Australia, Victoria, Western Australia and Tasmania under the following legislation:

• Voluntary Assisted Dying Act 2002 (NSW)
• Voluntary Assisted Dying Act 2021 (Qld)
• Voluntary Assisted Dying Act 2021 (SA)
• Voluntary Assisted Dying Act 2017 (Vic)
• Voluntary Assisted Dying Act 2019 (WA)
• Voluntary Assisted Dying Act 2021 (ACT)

The Northern Territory remains the only Australian jurisdiction without access to VAD. The introduction of the Restoring Territory Rights Act 2022 (Cth) in December 2022 means the NT can now consider legalising voluntary assisted dying. A report into developing a framework for voluntary assisted dying in the Northern Territory has been released.[1]

Victoria was the first Australian state to pass VAD laws. This article describes the law in Victoria, however, there are similarities with the laws in the other states and territories.

The Voluntary Assisted Dying Act 2017 (Vic) (the VAD Act) came into force in Victoria on 19 June 2019. The laws represent part of the Victorian government’s broader reforms in relation to end of life choices and the quality of palliative care. The legislation was passed following many years of debate regarding this issue, including eligibility, checks and balances that address concerns over safeguards for patients, and legal rights and obligations of health professionals.

Most religious groups disapprove of euthanasia due to the belief that human life is sacred, and some absolutely forbid it. A number of safeguards have been built into the legislation which mean that the Victorian law is one of the most conservative laws in the world in relation to this issue.

This legislation is relevant to:

• • all Australian hospitals and healthcare providers; and
  • private individuals who may wish to benefit from the legislation.

What do private individuals need to know?

Private individuals who wish to take advantage of the legislation need to know the eligibility requirements and the process as summarised below.

Who can access VAD?

To access VAD the individual must be an adult (18 years of age) and maintain decision-making capacity throughout the process.

The individual must be diagnosed with a disease, illness or medical condition that:

• is incurable;
• is advanced, progressive and will cause death;
• is expected to cause death within weeks or months, not exceeding six months; and
• is causing suffering to the person that cannot be relieved in a manner that the person considers tolerable.

A person is not eligible for access to VAD only because the person is diagnosed with a mental illness. A person is not eligible for access to VAD only because the person has a disability.

Despite the above, if the person is diagnosed with a disease, illness or medical condition that is neurodegenerative, that disease, illness or medical condition must be expected to cause death within weeks or months, not exceeding 12 months.

When can a person access VAD?

A registered medical practitioner, known as a ‘co-ordinating medical practitioner’ under the Act, must assess whether a person meets the eligibility criteria for assisted dying. A person may request access to VAD if:

• the person has made a clear, unambiguous and personally made first request to the registered medical practsuicitioner (sections 6 and 11); and
• the person has been assessed as eligible for access to VAD by:
  • the co-ordinating medical practitioner for the person;
  • a consulting medical practitioner for the person;
  • the person has made a final request to the co-ordinating medical practitioner;
  • the person has appointed a contact person who is aged 18 years or more (to monitor the VAD substance);
  • the co-ordinating medical practitioner has certified in a final review form that the request and assessment process has been completed as required by the Act; and
  • the person is the subject of a VAD permit.

At all times, the person seeking access to VAD can decide not to continue the request and assessment process. In this occurs, and the person then decides to proceed with VAD, that person must commence a fresh request.[2]

A co-ordinating medical practitioner must hold a fellowship with a specialist medical college or be a vocationally registered general practitioner, and must have completed approved assessment training.[3]

A registered health practitioner who has a conscientious objection to VAD has the right to refuse to do any of the following:

1. to provide information about VAD;
2. to participate in the request and assessment process;
3. to apply for a VAD permit;
4. to supply, prescribe or administer a VAD substance;
5. to be present at the time of administration of a VAD substance; and
6. to dispense a prescription for a VAD substance.[4]

Minimum requirements for co-ordinating medical practitioners and consulting medical practitioners

Each co-ordinating medical practitioner and consulting medical practitioner must hold a fellowship with a specialist medical college or be a vocationally registered general practitioner.

Either the co-ordinating medical practitioner or each consulting medical practitioner must have practised as a registered medical practitioner for at least five years after completing a fellowship with a specialist medical college or vocational registration (as the case requires).

Either the co-ordinating medical practitioner or each consulting medical practitioner must have relevant expertise and experience in the disease, illness or medical condition expected to cause the death of the person being assessed.

What do Australian hospitals and healthcare providers need to know?

It is important for healthcare providers to know that VAD must not be initiated by a registered health practitioner in the course of providing services to the person but a registered health practitioner may provide information about VAD dying to a person at that person’s request.[5]

Clinicians should become aware of the requirements in terms of eligibility, the assessment process, the required documentation, VAD permits and the process of prescribing and storing the drugs as summarised below.

Clinicians should also be aware that they may make a conscientious objection to participating in a VAD process.

Making a request for VAD

To access VAD, a person may make a request to a registered medical practitioner for access to voluntary assisted dying. A request for access to voluntary assisted dying must be:

• clear and unambiguous; and
• made by the person personally.

The person may make the request verbally or by gestures or other means of communication available to the person. There is no obligation to continue after making the first request.

Within seven days after receiving a first request, the medical practitioner must inform the person if they accept or reject the first request. If the registered medical practitioner accepts the person’s first request, the practitioner must:

• record the practitioner’s decision to accept the first request in the person’s medical record; and
• record the first request in the person’s medical record.

On acceptance of a person’s first request, the registered medical practitioner to whom the request was made becomes the co-ordinating medical practitioner for the person. After becoming the co-ordinating medical practitioner for a person, the co-ordinating medical practitioner must assess whether the person requesting access to voluntary assisted dying meets the eligibility criteria. The co-ordinating medical practitioner must not commence the first assessment unless the practitioner has completed approved assessment training.

If the co-ordinating medical practitioner is unable to determine whether the person has decision-making capacity in relation to voluntary assisted dying as required by the eligibility criteria –for example, due to a past or current mental illness of the person – the co-ordinating medical practitioner must refer the person to a registered health practitioner who has appropriate skills and training, such as a psychiatrist in the case of mental illness.

If the co-ordinating medical practitioner is unable to determine whether the person’s disease, illness or medical condition meets the requirements of the eligibility criteria, the co-ordinating medical practitioner must refer the person to a specialist registered medical practitioner who has appropriate skills and training in that disease, illness or medical condition.

Two doctors must make assessments of the person’s eligibility to access VAD and must also certify that the request and assessment process has been complied with in accordance with the legislation.

There must also be a final personal request to the co-ordinating medical practitioner. The coordinating medical practitioner must then make a final review. Once the assessments are completed, the doctor can apply for a permit to prescribe the medication and the medication can then be dispensed to the person.

Who will monitor VAD?

The Voluntary Assisted Dying Review Board (VADRB) monitors all activity under the legislation, including the issue of permit applications. Participating health practitioners are required to report to VADRB.

Can a guardian or other appointed medical treatment decision maker apply for VAD?

A family member or carer cannot request VAD on somebody else’s behalf. This is to ensure that the request is completely voluntary and without coercion, and that the decision is the person’s own. Therefore, a guardian cannot make a request for a VAD.

In order to access VAD, the person must have full decision-making capacity at all times.

What principles must be considered?

The principles that must be considered in exercising a power or performing a function or duty (including the Victorian and Civil Administrative Tribunal) under the VAD Act[6] are:

• every human life has equal value;
• a person’s autonomy should be respected;
• a person has the right to be supported in making informed decisions about the person’s medical treatment, and should be given, in a manner the person understands, information about medical treatment options including comfort and palliative care;
• every person approaching the end of life should be provided with quality care to minimise the person’s suffering and maximise the person’s quality of life;
• a therapeutic relationship between a person and the person’s health practitioner should, wherever possible, be supported and maintained;
• individuals should be encouraged to openly discuss death and dying, and an individual’s preferences and values should be encouraged and promoted;
• individuals should be supported in conversations with the individual’s health practitioners, family and carers and community about treatment and care preferences;
• individuals are entitled to genuine choices regarding their treatment and care;
• there is a need to protect individuals who may be subject to abuse; and
• all persons, including health practitioners, have the right to be shown respect for their culture, beliefs, values and personal characteristics.

What is a VAD permit?

A self-administration permit authorises the prescription, possession and storage of the VAD substance to specified people, including:

• the co-ordinating medical practitioner;
• the person self-administering the substance; or
• the self-administering person’s contact person within 15 days after the date of death.

How is the VAD substance dispensed?

The government has established a VAD statewide pharmacy service, which is operated by the pharmacy department at the Alfred Hospital in Melbourne to:[7]

• prepare the VAD medications;
• deliver the VAD medications (in a locked box) to patients who have a VAD prescription;
• provide patients with information and support to self-administer the VAD medications;
• support medical practitioners, patients, families and carers throughout the process; and
• receive and dispose of any unused VAD medications.

This VAD statewide pharmacy service is to supply the medications and the education. However, it is not the pharmacists’ role to administer the medications.

Generally, the person must administer the drug themselves (section 47), but there are provisions which allow the co-ordinating medical practitioner to apply for a ‘practitioner administration permit’ if the person is physically incapable of self-administration.[8]

What medications will be used for VAD?

To minimise the risk to the public, the exact composition of the VAD substance is unavailable. In addition, the appropriate medications will vary on a case-by-case basis depending on the individual person and their medical condition. Access to this substance is provided free of charge to the persons seeking to use the medication.[9]

Can VAD be requested in an advanced care directive?

An advanced care directive permits a person to document their preferences regarding future medical treatment should they lose decision-making capacity.

You cannot request VAD in an advanced care directive. People requesting VAD must retain decision-making capacity through the entire request and assessment process.

Further information

More information can be found on the Victorian Government’s VAD website: www.health.vic.gov.au/voluntary-assisted-dying/guidance-for-health-services

Nicholas Carr v Attorney-General for the Commonwealth

Since the commencement of the legislation there have been a number of cases, including applications for the review of decisions made about voluntary assisted dying.

VAD is permitted in most Australian states and territories as per this article. 

Under the Australian Constitution, where there is a conflict between Commonwealth/federal and state legislation, the Commonwealth legislation prevails. 

Under the Commonwealth Criminal Code, it is an offence to use a 'carriage service' – such as a phone or video call – to counsel or incite suicide. 

In Nicholas Carr v Attorney-General for the Commonwealth (2023) 300 FCR 562[2023]; FCA 1500; BC202317174, Federal Court of Australia Abraham J 16 October, 30 November 2023 it was held that ‘suicide’ in the Criminal Code 1995 (Cth) does apply to conduct undertaken in accordance with and authorised by the Victorian VAD legislation. 

Sections 47429A and 474.29B of the Criminal Code relate to offences relating to use of carriage services for suicide-related material. 

Therefore, in Australia, medical practitioners cannot use telehealth to counsel voluntary assisted dying. 

Further, in Medical Board of Australia v Carr (Review and Regulation) [2023] VCAT 945 (14 August 2023), Dr Nicholas Carr was reprimanded and fined $12,000 for paperwork that failed to comply with the VAD Act.[10]

In 2020, Dr Carr certified to VADRB that specific paperwork required under the VAD Act had been completed in accordance with the VAD Act, when it had not.

Dr Carr assisted a patient to access VAD. The patient attended Dr Carr’s practice, along with two witnesses and a support person, to complete a document called a ‘written declaration’. The two witnesses and Dr Carr signed and dated the document, but the patient did not. The patient’s written declaration was submitted to the VADRB along with a document called a ‘final review form’, in which Dr Carr certified the VAD request and assessment process had been completed in accordance with the VAD Act. This certification was incorrect as the patient had not signed the ‘written declaration’.

When Dr Carr submitted the application for a ‘self-administration permit’ for the patient, he certified that he had reviewed all the forms. However, he either failed to do so, or did so and failed to identify the fact the ‘written declaration’ had not been signed.

This oversight was pointed out to Dr Carr by VADRB. Dr Carr arranged for the patient to attend his practice and sign the ‘written declaration’. Instead of making a new declaration in front of witnesses (as required by the VAD Act), the patient signed the document that the witnesses had already signed and backdated it (so the date next to his signature matched the dates next to the witnesses’ signatures). Dr Carr submitted this document to the VADRB and the patient subsequently accessed VAD.

A review by VADRB discovered the backdated ‘written declaration’ form, triggering an investigation in which Dr Carr made full admissions. While the VADRB did not consider Dr Carr had intended to deceive, the error was ‘too serious to be ignored’ and a notification was made to the Medical Board of Australia (the Board). Following an investigation, the Board decided to refer Dr Carr to the Victorian Civil and Administrative Tribunal.

The Tribunal found Dr Carr’s behaviour constituted professional misconduct. It ordered Dr Carr be reprimanded and pay a fine of $12,000 to the Board. In making its finding, the tribunal noted that, given the nature of the VAD scheme, behaviour short of strict compliance with the VAD Act was substantially below the standard expected of a practitioner of Dr Carr’s training and experience.

The Tribunal acknowledged that the false declaration was not deliberate. It noted Dr Carr did not stand to benefit from his error, he had admitted his responsibility and had shown significant remorse for his actions, and put measures in place to make sure the same mistake did not happen again. The Tribunal further acknowledged that there were no concerns about the patient’s eligibility to participate in the VAD process and that if there had been, the conduct would be of a much higher order of seriousness.

This case highlights the need for strict compliance with the relevant VAD law.

Other cases have largely determined if a person met the residency requirements under the relevant state legislation.